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TMI Blog2024 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ress of the person who released the goods did not match with the details of the person whose name is mentioned in the e-way bill. Because of the discrepancy in the documents, the respondent authorities concluded that the petitioner transported the goods, i.e., the machine in contravention of the provisions of law. In Bharti Airtel [ 2022 (10) TMI 998 - ALLAHABAD HIGH COURT ] the Court opined that there is no provision under Section 129 for determination of tax due, which can be done only by taking recourse to provision of Section 73 and 74 of the Act, as the case may be. In Vardan Associates [ 2024 (2) TMI 189 - SUPREME COURT ], decision relied upon by the respondent authorities, penalty was imposed as the assessee failed to comply with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices Tax Act, 2017. An escalator machine (JCB) of the petitioner returning from work was intercepted by the officers of the Bureau of Investigation, North Bengal Alipurduar Zone. The driver of the vehicle failed to produce any document in support of movement of the goods, i.e, the JCB machine. On account of the said offence order of detention under Section 129 (1) of the State Goods and Services Tax Act, 2017 was issued. The authority alleged that the provision of Section 68 (1) of the Act was violated. The petitioner was directed to pay penalty under Section 129 (3) of the Act. 2. The adjudicating authority passed order against the petitioner. An appeal was carried there from before the appellate forum which too stood rejected. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner did not have any intention to evade tax. The petitioner is the owner of the JCB machine which was being returned and the same is not a taxable supply. Assuming, but not admitting, that penalty could have been charged, the same ought not to be more than Rs. 25,000/- only as the goods in question was not eligible for payment of tax. For a minor breach of not possessing the delivery challan, such heavy amount of penalty at the rate of 200% ought not to have been imposed. 6. In support of the aforesaid submission the petitioner relies upon the judgment delivered by the High Court of Uttarakhand in Prestress Steel LLP vs. Commissioner, Uttarakhand State GST reported in (2013) 157 taxmann.com 112 (Uttarakhand), order dated 16th June, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority and the appellate authority noticed that the vehicle in question was not released by the person as recorded in the e-way bill. The same was released by some other person. The delivery challan was also not signed by the consignor. Section 129 of the Act provides for imposition of 200% penalty if goods are transported without valid documents. The adjudicating and the appellate authority were of the considered opinion that the petitioner would be liable to pay penalty at the rate of 200%. 11. The respondents rely on the judgment delivered by the Hon'ble Supreme Court in the matter of Vardan Associates Private Limited vs. Assistant commissioner of State Tax and Central Section & Ors. reported in 2023 SCC Online SC 1710. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to impose penalty on the ground that the petitioner could not produce valid documents in support of the movement of the goods. 16. The appellate authority held that the fact that the movement of goods was in pursuance of a transaction that is not taxable is irrelevant and inconsequential because it is the mandate of law that there should be a delivery challan accompanying the goods in movement. If condition under the Act and the Rules are not complied, Section 129 will be attracted. Failure to comply a provision and the excuses taken for non-compliance will not exonerate the petitioner from facing action under Section 129 of the Act. 17. The Hon'ble Division Bench of this Court in the matter of Usha Martin Limited (supra) held that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent authorities, penalty was imposed as the assessee failed to comply with the requirement to generate fresh e-way bill while transporting the goods as the e-way bill in question expired in the midst of transportation. In such a situation the Court was of the opinion that a fresh e-way bill ought to have been generated so that the transportation of the consignment could be concluded. 21. In the present case there was a valid e-way bill in support of the transportation. It is only because of non-production of the delivery challan that the penalty has been assessed and imposed. Though possession of all document in support of transportation is the fundamental requirement of law, but as it appears that, the petitioner did not have the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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